Easements represent a major and at times understated facet of real estate law. Their impact on the use and/or development potential of a site can be significant and therefore due care should be paid when dealing with such rights. We have set out some key concepts that should be considered when dealing with easements:
1) Appropriation;
Under the Local Government Act 1972 and the Housing and Planning Act 2016 local authorities have the power to change the use of any land that it holds by means of "appropriation". By using the power of appropriation, local authorities can override existing easements and rights burdening the land and pay compensation to the relevant parties. The power of appropriation granted by s.122 of the Local Government Act 1972 can only be exercised if the land concerned is no longer required for its current purpose and any decision to use this power must be balanced against the public need for the current use in the affected area.
2) Lift and Shift;
Lift and Shift provisions are often found in utilities agreements. The provisions enable the grantor to require the relocation of an existing easement route, to a new location and offers greater flexibility for land owners to develop their land. Lift and shift clauses should clearly establish the circumstances under which the grantor can require the relocation of any easement routes, including specifying a timescale, notice mechanism and an agreement as to who will bear the costs of the relocation works.
3) Termination;
A termination of an easement can occur where the easement is no longer being used. Options available to you can include:
- Express release: whereby parties enter into a formal agreement to bring the easement to an end;
- Implied release: where the conduct of the parties or the circumstances surrounding the easement indicates the desired intention to terminate the rights. For example, by way of abandonment; or
- Operation of law: examples being where an easement is granted for a specified term of years, which has now expired or where the dominant and servient land come into the same ownership.
4) Site Visits;
The value of a site visit cannot be underestimated. Site visits can enable parties to identify unregistered easements affecting a site, such as those created by prescription, which might otherwise have evaded detection from desktop due diligence. The site visit can help place a development site into context, allowing parties to see the real world impact and implications of all issues affecting the property.
5) Costs
Costs can be a hotly contested issue when dealing with easements. Accordingly it is good practice to clearly establish in any deed of easement how the relocation, repair and maintenance costs are to be treated by the parties. Understanding and preparing for such costs is equally as important as understanding the physical requirements and implications of the easement itself.
Article written by Meghan Kirwan and Michael Bogahalanda
